- 1 - 1. The meeting was resumed at 9:40 a.m on 18.12.2013. 2. The following Members and the Secretary were present in the resumed meeting: Mr Thomas T.M. Chow Chairman Mr Stanley Y.F. Wong Vice-chairman Professor S.C. Wong Mr Timothy K.W. Ma Professor Eddie C.M. Hui Dr C.P. Lau Ms Julia M.K. Lau Mr Clarence W.C. Leung Mr Roger K.H. Luk Ms Anita W.T. Ma Dr W.K. Yau Ms Bonnie J.Y. Chan Professor K.C. Chau Mr H.W. Cheung Dr Wilton W.T. Fok Mr Ivan C.S. Fu Mr Sunny L.K. Ho
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1. The meeting was resumed at 9:40 a.m on 18.12.2013.
2. The following Members and the Secretary were present in the resumed
meeting:
Mr Thomas T.M. Chow Chairman
Mr Stanley Y.F. Wong Vice-chairman
Professor S.C. Wong
Mr Timothy K.W. Ma
Professor Eddie C.M. Hui
Dr C.P. Lau
Ms Julia M.K. Lau
Mr Clarence W.C. Leung
Mr Roger K.H. Luk
Ms Anita W.T. Ma
Dr W.K. Yau
Ms Bonnie J.Y. Chan
Professor K.C. Chau
Mr H.W. Cheung
Dr Wilton W.T. Fok
Mr Ivan C.S. Fu
Mr Sunny L.K. Ho
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Mr Lincoln L.H. Huang
Ms Janice W.M. Lai
Mr Dominic K.K. Lam
Mr Patrick H. T. Lau
Ms Christina M. Lee
Mr H. F. Leung
Mr Stephen H.B. Yau
Mr F.C. Chan
Deputy Director of Environmental Protection
Mr C.W. Tse
Principal Assistant Secretary for Transport and Housing
Miss Winnie M.W. Wong
Director of Lands
Ms Bernadette H.H. Linn
Director of Planning
Mr K.K. Ling
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Deliberation
[Closed Meeting]
3. The Chairman extended a welcome to all Members and thanked them for
their attendance at the previous sessions of the meeting to hear the representations and
comments in respect of the draft Central District (Extension) Outline Zoning Plan No.
S/H24/8 (the OZP). He recapped that the OZP gazetted on 15.2.2013 was mainly to
amend the zoning of a strip of waterfront land to the north of the existing People‟s
Liberation Army (PLA) Hong Kong Garrison (the Garrison) Headquarters in the
Central Barracks from “Open Space” to “Other Specified Uses” annotated “Military
Use(1)” (“OU(MU)1”). A total of 9,815 representations and 9,242 comments were
received. For the hearing, 74 representers/commenters/authorised representatives
(involving 110 representations/ comments) attended and 66 of them made oral
submissions to the Board. Seven of the attendees made use of the cumulative
presentation time mechanism through obtaining authorizations from other
representers/commenters. The 14 requests for extension of presentation time were
all agreed by the Board based on justifications put forth by the
representers/commenters and the time extensions were granted.
4. Members reconfirmed that it was necessary to adopt the special meeting
arrangements which were set out in the “Guidance Notes on Attending the Meeting
for Consideration of the Representations and Comments in respect of the draft Central
District (Extension) Outline Zoning Plan No. S/H24/8” to cater for the large number
of representations and comments received and since more than 1,000
representers/commenters had registered and indicated that they would attend the
meeting. While there was a time limit of 10 minutes on presentation for each oral
submission, the arrangements of allowing cumulative speaking time for authorised
representatives representing more than one representer/commenter, swapping allotted
time with other representers/commenters and/or requesting for extension of time for
presentation had provided sufficient flexibility. Taking into account the attendance
at the various sessions, the Board had made refinements to the meeting arrangements
in the process to allow the extension of time for presentation to be made on the same
day rather than after all representations or comments had been heard as set out in the
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first version of the Guidelines. The attendees who walked out of the first session of
the meeting were all invited back to make their presentations and the Board had
allowed their requests for extension of time for presentations. All in all, under the
special hearing arrangements, the hearing proceeded in an orderly manner and the
rights of the representers/commenters to be heard was duly respected.
5. With regard to the concern raised by some representers/commenters on
the conflict of role of the Chairman of the Board, Members re-affirmed that there was
no conflict of role for the Permanent Secretary for Development (Planning and Lands)
as the Chairman of the Board to chair the meeting. Members agreed that the
Chairman could continue to chair the meeting as all official and non-official Members
of the Board were appointed by the Chief Executive under section 2 of the Town
Planning Ordinance (the Ordinance), and the Chairman was exercising his duties
under the Ordinance in chairing the Board meetings. The Board was mindful of his
responsibility to act fairly in considering the representations and comments in respect
of the OZP. When considering any matters submitted to the Board, Members,
including the Chairman, would comprehensively take into account all relevant
planning factors, including but not limited to Government policies. Furthermore,
upon consideration of the representations and comments, the Board only needed to
decide whether or not to propose amendments to the OZP in the manner proposed in
the representations or otherwise in the manner that, in the opinion of the Board, would
meet the representations. Whether to approve the OZP or not was to be decided by
the Chief Executive in Council. In considering the representations and comments,
the Board was not exercising judicial functions or similar functions, and its decision
would not determine the rights or obligations of any person.
6. The Chairman invited Members to consider the representations and
comments taking into account all the written and oral submissions. The Chairman
said that Members would deliberate on the main grounds and proposals of the
representers/commenters at this session. The Secretariat would then draft the
reasons for the Board‟s decision based on the discussion at this session, which would
be considered by the Board at a separate session to be held at a later date.
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Defence Land Agreement (DLA)
Obligation under DLA
7. The Chairman said that many representers and commenters had raised
matters relating to the 1994 Exchange of Notes constituting an Agreement between
the Government of the United Kingdom of Great Britain and Northern Ireland and the
Government of the People‟s Republic of China on the Arrangements for the Future
Use of the Military Sites in Hong Kong (the Defence Land Agreement or DLA). It
was stated in Clause 3 of DLA that “the Government of the United Kingdom shall
ensure that the necessary funds are sought to reprovision the buildings and fixed
facilities listed as Items 1 to 4 of Annex III without compensation at the sites agreed
by the two sides as shown in the said Annex, and that the Hong Kong Government
carry out the undertaking listed as Item 5 of Annex III.” Item 5 of Annex III was
related to the Central Military Dock (CMD), and it was stated that “The Hong Kong
Government will leave free 150 metres of the eventual permanent waterfront in the
plans for the Central and Wanchai Reclamation at a place close to the Prince of Wales
Barracks for the construction of a military dock after 1997.” The
representers/commenters considered that the Hong Kong Special Administrative
Region Government (HKSARG) only needed to leave free 150 metres of the eventual
permanent waterfront promenade for berthing of vessels and there was no obligation
to fund, construct and hand over the military dock under Item 5 of Annex III.
8. The Vice-chairman said that the wording in Item 5 of Annex III stated
both to “leave free 150 metres of the eventual permanent waterfront” and “for the
construction of a military dock after 1997”. Hence, it was considered that HKSARG
had an obligation to construct a military dock including its ancillary facilities. Three
other Members held the same view.
9. A Member said that Annex III had to be read together with the main text
of DLA. It was clear from Clause 3 of DLA that Items 1 to 4 in Annex III were to
be provided before 1997 while Item 5 about CMD was an undertaking that had to be
completed after 1997. Hence, while DLA might have lapsed after 1997, the
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undertaking in Item 5 had to be honoured and completed by the HKSARG after 1997.
10. A Member also agreed that the main text of DLA had to be read together
with the Annexes. Clause 3 of the main text indicated that all items set out in the
Annexes were to ensure that the buildings and facilities would continue to be
available for defence purposes as from 1 July 1997. It was clear from the wording
that the military facilities listed under Items 1 to 5 should “continue to be available”
after 1 July 1997. Hence, the argument that Item 5 would no longer be relevant after
the Handover was unfounded. The PLA had a continued right to the military
facilities listed under Items 1 to 5 after the Handover. Two other Members also did
not agree to some representers‟/commenters‟ argument that DLA should be ignored as
the HKSARG was not a concerned party in the agreement.
11. The Vice-chairman said that it was obvious that ancillary facilities were
required for the military dock. The kind of facilities that might be required could
make reference to the design requirements for the other military facilities covered by
DLA. Another Member agreed and said that details of CMD were not available at the
time of signing DLA due to uncertainties about the extent and detailed design of the
reclamation and hence it was not possible to set them out in DLA. The current
design of CMD had merits in that the ancillary facilities were provided at a setback
location near but not directly abutting the waterfront. As such, it would enable a
continuous waterfront promenade for use by the public when CMD was not in
military use. This would be much better than a design that would permanently block
off a section of the waterfront.
12. A Member said that the Board should consider the land use zoning for
CMD that was now completed and should not dwell on the interpretation of the
requirements for CMD under DLA. Another Member said that the Board should
consider the appropriate land use zoning for the site that would reflect its dual
purposes for military and open space uses. Another Member said that the
“OU(MU)” zoning was the appropriate for the site. As the military dock was for
defence purposes and there was the possibility of military actions to be held within it,
it would not be appropriate to rezone the space therein as “Open Space” (“O”) as
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proposed by some representers/commenters. Two other Members also agreed that
the current “OU(MU)” zoning was appropriate to reflect the military use of the site.
13. A Member considered that given the historical background of DLA, the
HKSARG had continued responsibility to provide CMD. The land use zoning for
the site should respect the right of the PLA to use a military dock with the necessary
facilities at the Central waterfront. This view was shared by two other Members.
14. A Member said that DLA clearly stated the need for the construction of a
military dock after 1997 in Central and there was no dispute on that point. The
PLA‟s right to use a stretch of the Central waterfront was certain, despite that details
of CMD were not yet available then due to the uncertainties about the Central and
Wanchai reclamation at the time. However, how the military dock should be built
was a matter for the Garrison and the HKSARG to decide and needed not be specified
under DLA. The representers/commenters generally did not dispute that there
should be a military dock at the Central waterfront. The Board needed not discuss
about DLA and should focus on discussing about the zoning for the site that was the
major issue of contention raised by the representers.
15. Mr K.K. Ling, Director of Planning, said that the delineation of the
eventual permanent waterfront was not yet determined in 1994. After 1997, once
the reclamation limit was confirmed, a line annotating the extent of CMD was added
on the OZP. It was clear that the military dock had to be constructed after 1997.
The representers‟ argument that it was only necessary to leave free 150m of the
waterfront in form of a line for the military dock was unfounded.
16. In summary, Members were of the view that it was not for the Board to
rule whether HKSARG had any obligation to comply with DLA. However, the
historical background relating to the reprovisioning of the military dock for the
Garrison for defence purpose was relevant, and the Board should take this into
account when considering the land use zoning for the site.
[Ms Anita W.T. Ma returned to join the meeting at this point.]
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Spatial Extent of CMD
17. The Chairman said that another consideration put forth by some
representers was that the CMD site was not on the list of the 14 military sites in
Annex I to DLA, and all military facilities to be reprovisioned under Items 1 to 4 in
Annex III had dimensions while there was only a need to leave free 150m of the
waterfront for CMD under Item 5 in Annex III. Hence, there was query on the
spatial extent of CMD and some considered that the Government of the United
Kingdom only needed to reserve a stretch of the waterfront and there was no need for
the HKSARG to construct the military dock on the site.
18. A Member said that according to Clause 3 of DLA, the Government of
the United Kingdom was to reprovision buildings and fixed facilities under Items 1 to
4 in Annex III, hence there were detailed specifications. For Item 5 in Annex III, it
was only an undertaking for the reprovisioning of the military dock. As such, there
was no need to specify the details about CMD in DLA as it would be constructed after
1997 and the details were not matters for the Government of the United Kingdom
before the Handover.
19. A Member said that the representers had raised a number of legal
arguments. The legal aspects were relevant considerations. The Chairman said that
the legal opinion obtained from the Department of Justice was incorporated into the
Town Planning Board paper. Two Members also said that the legal aspect was only
one of the many considerations that the Board needed to consider about the OZP
amendments.
20. Two Members said that the requirement for the construction of a military
dock should mean a two dimensional space, rather than just a line as argued by some
representers. Another Member agreed and said that the Board might consider
whether only zoning the four structures on site for military use, as suggested by some
representers/commenters, was sufficient for the site to serve as a military dock. The
Vice-chairman and another Member said that it was obvious that construction of a
military dock required a space rather than just a line.
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21. Two Members said that it was clear that DLA required building of a
military dock rather than only reserving a berthing space. Four other Members said
that as the eventual permanent waterfront was not yet fixed at the time of signing
DLA, it was not possible to specify the details for CMD in DLA. Two other
Members reiterated the view that the historical background embodied in DLA had to
be considered, i.e. the Garrison had a right to the military dock at the Central
waterfront after the Handover.
22. In summary, Members considered that the requirement for the
construction of a military dock depicted a two-dimensional space rather than just a
line on the OZP. Details of CMD were not specified in DLA as the eventual
permanent waterfront at the Central and Wanchai reclamation could not be
determined at that time.
[Ms Anita W.T. Ma and Dr C.P. Lau left the meeting temporarily at this point.]
Opening of the CMD Site Contravened DLA
23. The Chairman said that according to DLA, “The military sites handed
over to the Garrison shall be used exclusively for defence purposes. The right to use
the military sites shall not be transferred and the sites shall not be made available to
others for purposes other than defence.” Based on that, some representers
considered that if the CMD site was used for open space, it would contravene the
original intention of DLA. In this regard, the representative of Planning
Department (PlanD) had explained at the hearing that the Garrison had agreed in 2000
that it would open the land area of the military dock (except for the utilities, ancillary
structures and landing steps) to the public as a part of the waterfront promenade when
the dock was not in military use, having regard to its operation and the need for
protecting the military dock. However, this would not affect the use of the site for
defence purpose.
[Dr W.K.Yau left the meeting temporarily at this point.]
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24. A Member said that DLA should have no binding effect on how CMD
was to be used. Another Member said the Garrison‟s agreement to open the land
area of the military dock to the public as a part of the waterfront promenade when the
dock was not in military use was with good intentions.
25. The Vice-chairman and three other Members said that the primary use of
the CMD site for military purpose was indisputable. With regard to the point that
the right to use the CMD site should not be transferred, the Vice-chairman and a
Member said that even though the land area might be opened to the public when not
in military use, the Garrison had not transferred the right to use the site, it still
maintained the right to decide when the land area should be closed for defence
purpose and when it should be opened for the public to use. Similarly, the defence
purpose of the military facilities at Stonecutters Island would not be affected even
though it would sometimes be opened to the public on open days.
26. Two Members said that there was no need to go into detailed discussion
of what would constitute defence purposes or whether a particular use would
contravene DLA. The Garrison‟s agreement to open the CMD site for public
enjoyment of the waterfront when not in military use was with good intentions to
provide convenience for members of the public. It was an innovative attempt for
integration of the site with other waterfront uses. There should be no contravention
with DLA.
27. In summary, Members noted that CMD was designed to meet the defence
requirements of the Garrison; and that it would be handed over to the Garrison for
management and use. Members were of the view that the primary purpose of the
CMD site was for defence purpose. Opening the CMD site for public use as part of
the waterfront promenade when it was not in military use would not constitute a
transfer of right of use of the CMD site.
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The DLA was not for the Board to consider
28. The Chairman said that some representers had indicated that DLA was not
for the Board to consider. Only the land use, planning intention and design were
relevant considerations for the Board. Members noted and agreed that the earlier
discussion had covered this ground.
Terminologies of 軍用碼頭 or Military Dock
29. The Chairman said that some representers had raised queries about
whether a military dock or military berth was required under DLA. Members noted
that the English version of DLA used the term “dock” while the Chinese version used
the term “軍用碼頭.” In this regard, Members noted that the Board should consider
whether the proposed “OU(MU)” zoning was appropriate from land use planning
perspective rather than the legal interpretation of the said terms.
30. In summary of the above discussion about DLA, Members‟ views were
that DLA required, among other matters, leaving free 150m of the eventual permanent
waterfront at a place close to the current Central Barracks for the construction of a
military dock after 1997. After the reunification, the HKSARG confirmed the
Garrison‟s need for CMD for defence purposes and took up the construction of CMD
near the Central Barracks after the completion of the statutory plan-making process in
2000 and funding approval by the Legislative Council (LegCo) in 2002. The
detailed design and delineation of CMD was now confirmed and the construction
works were reaching their final stages. It was against this historical background that
amendments were made to reflect the final delineation and the land use of CMD on
the OZP.
Planning Process and Public Consultation
31. The Chairman said that the representers had raised a number of grounds
relating to the planning process and public consultation, as follows:
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(a) the Central District (Extension) OZP had been amended seven times
since its first approval in 2000, but the site had all along been zoned
“Open Space” (“O”) on the OZP until the latest round of
amendment in January 2013. The Government‟s explanation that
the detailed design of CMD had not yet been confirmed until
recently was deceptive, as the design had already been determined
and was shown in earlier documents, such as in the document for the
consultation with District Councils in 2010;
(b) the Government had misled the public during consultation. All
along the public had been informed that there would be a public
open space at the CMD site and there would be a continuous
waterfront promenade. Hence, the public had legitimate
expectation of such provision rather than the rezoning of the site to
military use;
(c) the consultation in respect of the OZP amendment was not a
genuine consultation as it was undertaken after the military dock
and the associated facilities were built; and
(d) the Government had all along in the consultation exercise indicated
that the military pier was to be integrated with and be part of the
waterfront promenade for public enjoyment and access. The
amendment to the OZP had made this right for public enjoyment
and access conditional upon the PLA agreement on when to open
the CMD site for public use. Some indicated that the site should
be opened for public enjoyment and subject to occasional military
use.
32. The Vice-chairman said that he did not agree that there was insufficient
consultation about CMD or that the Government had misled the public. PlanD had
explained at the hearing the extensive consultations that the Government had
undertaken since early 2000, including the public engagement exercise for the Urban
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Design Study for the New Central Harbourfront (UDS) and consultations with the
District Councils. Throughout the consultations, it was clear that an area would
be reserved at the Central waterfront for a military dock and it was clearly annotated
that it was subject to detailed design. Nevertheless, the current controversy might
be due to the perception of the public that the area would be reserved for open space
use and there would be a continuous waterfront promenade at all times.
33. Two other Members said that they had been involved in some of the
public engagement activities for UDS and the fact that there would be a military dock
at the location of the site was clear and the allegation that PlanD had misled the public
was unfounded. A Member said that the claims of some representers/commenters
that the Government had misled the public during consultation and they were not
aware that there would be a military dock at the Central waterfront could not be
substantiated. Another Member said that in the previous consultations, the
appropriate zoning of the CMD site had not been discussed.
34. A Member said that the planning intention for a military dock at the
Central waterfront had already been clearly stated in the earlier versions of the OZP.
It was clearly annotated that the site would be subject to detailed design. As the
detailed design and delineation of CMD was now confirmed, it was in line with the
Board‟s normal practice to amend the OZP to reflect CMD as a military use. The
OZP amendments had been submitted to the Board for consideration within
reasonable time from the finalisation of the detailed design and its construction.
[Mr Ivan C.S. Fu left the meeting temporarily at this point.]
35. Mr K. K. Ling said that the Government had not misled the public about
CMD in the previous public engagement exercises. As soon as the eventual
permanent waterfront under the Central Reclamation Phase III (CRIII) project had
been finalised, the military berth, represented by a straight line, was indicated on the
OZP. The public was all along informed that there was a need to build a military
dock at the Central waterfront; that when the CMD site was not in military use, it
could be opened for public enjoyment; and that the design would integrate with the
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waterfront promenade. Contrary to claims by some representers/commenters, PlanD
had explained at the hearing that the Government had never indicated in any previous
public engagement that CMD would only be for ceremonial functions.
[Ms Christina M. Lee returned to join the meeting at this point.]
36. Three Members indicated that the Government‟s previous consultations
about CMD were not directly relevant to the Board‟s consideration of the
representations/comments in respect of the OZP. The Board should consider
whether the proposed “OU(MU)” zoning was appropriate for the CMD site and it was
important to note that the consultations required under the statutory planning process
had been followed in this round of OZP amendments.
37. In summary, Members considered that the military berth at the Central
waterfront was deliberated by the public at length when the draft OZP was gazetted in
1998. After going through a due process of plan exhibition and objection hearing
under the then Town Planning Ordinance, the military berth was represented by a
straight line annotated “150m Military Berth (subject to detailed design)” on the draft
OZP since the design and the area required had not yet been decided at the time.
The draft OZP was first approved by the Chief Executive in Council on 22.2.2000.
On 21.6.2002, the LegCo approved the funding for building CMD and associated
facilities for use by the Garrison, as part of the CRIII project. The Government had
made known to the public the location and conceptual design of CMD and its
integration with the New Central Harbourfront in the extensive public engagement
exercises under the UDS in 2008, and the architectural design was presented to the
Central & Western District Council and Harbourfront Commission‟s Task Force on
Harbourfront Developments on Hong Kong Island on 13.5.2010 and 6.10.2010. The
Government had all along made it clear that the concerned land area was for use as a
military dock and that the Garrison had agreed to open it to the public when it was not
in military use; instead of the other way round (i.e. open space use subject to
occasional military use) as presented by some representers/commenters. The
construction of CMD had now been largely completed and the OZP was duly
amended to reflect the as-built condition. The OZP was exhibited and published for
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public representations and comments in accordance with the provisions of the
Ordinance. The statutory and administrative procedures in consulting the public on
the OZP amendments had been duly followed.
[The meeting took a five-minute break.]
[Dr C.P. Lau and Ms Anita W.T. Ma returned to join the meeting and Ms Bernedette
H.H. Linn left the meeting temporarily at this point.]
Protection of the Harbour Ordinance (PHO)
38. The Chairman said that some representers considered that there was no
overriding public need for the military dock. Hence, it contravened the PHO.
39. With regard to this ground of representation, a Member said that PHO
was not really relevant as the Board was considering the zoning of a piece of formed
land. Mr K.K. Ling said that there was no need for additional reclamation for
construction of CMD and the ancillary facilities were built in locations setback from
the waterfront.
40. In summary, Members noted that CRIII was to provide land for essential
transport infrastructure and the reclamation limit of the CRIII project followed strictly
the presumption against reclamation principle under the PHO. It was determined by
the need for provision of the essential transport infrastructure and re-provisioning of
affected waterfront facilities and had passed the “overriding public need” test. The
CMD site was located on land formed for such purposes and did not require any extra
reclamation. The OZP amendments by themselves should not engage the PHO as
they did not cause or give rise to any additional reclamation of the harbour.
Construction of the Ancillary Facilities
41. The Chairman said that some representers considered that the rezoning
was not to facilitate the construction of military pier facilities because the construction
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works, which had by-passed the statutory planning procedure, had already been
completed. They considered that the primary purpose was only to rezone the site
for military use and to hand it over to PLA. The rezoning would turn occasional
berthing activities into regular military activities and functions that would affect
public enjoyment of the waterfront promenade. On the draft OZP approved by the
Chief Executive in Council in 2000, there was only a straight line annotated “150m
Military Berth (subject to detailed design)”. There were queries why CMD was
already built before the zoning was amended.
42. A Member said that construction of the military dock, which was
co-ordinated and implemented by the Government, did not require planning
permission as it was an always permitted use under the earlier versions of the OZP.
Hence, there was no issue of unauthorised development. Whether the military dock
was already built when the OZP amendment was submitted to the Board had no
relevance to the Board‟s consideration of what the appropriate zoning for the site
should be.
43. Two Members also said that the planning intention for a military berth
was already annotated on the earlier versions of the OZP, and there was no question
of the construction works for the military dock being unauthorized. Another
Member considered that the said ground was not relevant to the Board‟s consideration
of the OZP amendments. The Chairman said that if the site was to be opened for
public use, it had to be based on an understanding that the CMD site involved a land
area rather than merely a line along the waterfront.
44. In summary, Members agreed that construction of the facilities ancillary
to CMD was part of the public works coordinated and implemented by the
Government as part of the CRIII project. The LegCo Public Works Subcommittee
paper stated clearly that as part of the CRIII project, the CMD works included the
berth and ancillary facilities for use by the Garrison. The military berth use as
shown on the first approved OZP in 2000 was a permitted use. The four
single-storey structures supporting CMD were ancillary facilities directly related to
the permitted use and no separate planning permission from the Board was required.
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There was no question of the construction works for the military dock being
unauthorized. The OZP amendments were to reflect the final delineation and the
land use of the military dock, which would not affect the arrangement under which
the dock would be open to the public when it was not in military use.
Law Enforcement and Operational Details
45. The Chairman said that a number of grounds relating to law enforcement
and operational details raised by some representers/commenters were as follows:
(a) the Garrison Law would be applicable to the CMD site. Under the
Garrison Law, defence actions taken by the Garrison should not be
subject to jurisdiction of the Hong Kong courts. Public rights of
gathering and protests at the site might not be protected by the Basic
Law or other Hong Kong Laws;
(b) if the site was governed by the Garrison Law, there were doubts on
whether the Police could enforce under Hong Kong Laws within the
CMD site and whether Hong Kong citizens and others would be
subject to law enforcement by PLA inside the CMD site;
(c) the Garrison was not answerable to the Chief Executive but to the
Central Government. There was no clear channel for the public to
complain against the Garrison. The Police could not arrest military
personnels who were on duty. The CMD would become a special
area within the HKSAR;
(d) there was no information on the management and operation of CMD,
including the party responsible for managing the site and the
arrangement for opening the site for public use;
(e) there was no written agreement from PLA that the CMD site would
be opened for public use in future. Hence, there was no guarantee
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that the CMD site would be open to the public when it was not in
military use;
(f) according to Article 12 of the Garrison Law, the Garrison would
define military forbidden zones jointly with the HKSARG. The
location and scope of the military forbidden zones should be
announced by the HKSARG, but there was no declaration of the
CMD site as military zone; and
(g) acts committed by members of the Garrison when performing their
official duties should be subject to the jurisdiction of the Supreme
People‟s Court of the People‟s Republic of China according to
Article 23 of the Garrison Law. Hong Kong citizens would worry
about this as it could not be dealt with in Hong Kong.
46. The Vice-chairman said that the concerns about law enforcement and
operational details raised by the representers/commenters were not matters for the
Board to address or consider when deciding on the land use zoning for the site.
Instead, the Government should take into account those concerns and try to alleviate
them when discussing the operational details with the Garrison at a later stage.
Another Member also agreed that matters on law enforcement and the operational
details were outside the Board‟s purview. A Member said that CMD involved a new
arrangement to integrate a military site with its surrounding uses and for it to be open
to the public when not in military use, the detailed operational arrangements needed to
be further agreed between the Government and the Garrison.
47. Another Member said that the representers/commenters had raised
worries relating to law enforcement and operational aspects. While those matters
were outside the Board‟s purview, the Board might still note those concerns when
discussing about the extent of the “OU(MU)” zone. For example, whether reducing
the extent of the “OU(MU)” zone, to cover say only the four structures on the site,
might alleviate some of the concerns of the representers/commenters. Members
noted that the suggestion of limiting the zoning to the four structures would be
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discussed later on in the session.
[Ms Bernedette H.H. Linn and Dr W.K. Yau returned to join the meeting at this point.]
48. A Member said that it was outside the Board‟s purview to consider the
law enforcement aspects. There was a need to reprovision a military dock at the site
and the Garrison had agreed to open it to the public when it was not in military use.
Regardless of whether the site would be zoned “OU(MU)” or “O”, it might be used
for both military and open space uses at different times.
49. The Chairman said that when the Board zoned sites as “O”, it would not
consider the operational details nor control the specific uses within the open spaces.
Similarly, the applicable laws or operational details of the military dock should not be
matters for the Board to consider or control. Even if CMD was to be zoned as “O”
as proposed by some representers/commenters, it would not change the fact that the
entire CMD site had to be handed over to and would be managed and used by the
Garrison primarily for military purpose.
50. A Member said that after the CMD site was handed over to the Garrison,
it would be managed and used by the Garrison in a manner they considered
appropriate to serve defence purposes. This might be similar to the allocation of
open space sites to the Leisure and Cultural Services Department (LCSD) in which
the LCSD will manage and use the open spaces in ways considered appropriate.
51. In summary, Members considered that CMD, being one of the military
facilities of the Garrison, would be under the management and used by the Garrison.
The Garrison had, on the request of the HKSARG, agreed in 2000 that, having regard
to its operation and need for protecting the military dock, it would open the area of the
military dock to the public as part of the waterfront promenade when it was not in
military use. The OZP amendments would not affect the arrangement agreed by the
Garrison. The management and detailed operational arrangements of the military
dock were outside the purview of the Board. Members noted that the Government
would further liaise with the Garrison on the detailed arrangements for opening the
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area of the CMD site to the public and inform the public of the future arrangements.
Members also noted that whether a place was publicly or privately owned, the Police
could carry out the enforcement duties under Hong Kong Laws.
Connectivity of the Waterfront
52. The Chairman said that some representers considered that CMD would
disrupt the connectivity and continuity of the waterfront and affect the provision of a
cycle track on the waterfront. It was also incompatible with the adjacent waterfront
and open space uses. In this regard, he said that PlanD had explained at the hearing
that CMD had been designed to integrate with the waterfront promenade and the
ancillary structures had been set back from the waterfront. When CMD was used for
military purpose, the site would be closed off with gates and there might be some
temporary road closure. Nevertheless, the public could use still use the walkway and
the open space to the immediate south of the CMD site as a continuous east-west
connection along the waterfront.
53. A Member said that there were a number of existing piers on both sides of
the harbour, and it was not feasible to provide continuous access along the entire
waterfront. Another Member said that while there were disruptions in the existing
waterfront, provision of continuous access along the harbourfront was a vision for
newly designed areas such as the Central waterfront. From the experience in dealing
with these matters in the District Council, alternative access could be provided around
the public facilities at the waterfront to enhance pedestrian accessibility. Another
Member said that there were vast areas of open space at the Central harbourfront, and
hence, there was generally continuous waterfront access around the CMD site
although it might not be a direct line of connection. Another Member opined that
the design of Piers 9 and 10 was good in that it allowed for continuous access along
that stretch of the waterfront. The Chairman said that if the Garrison needed to use
CMD, it was inevitable that the site would be closed off and there would be temporary
disruption to the continuous waterfront access. Two Members also said that at times
when CMD was not in military use, there would still be a continuous waterfront
promenade at that location.
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54. In summary, Members did not see major contravention of the planning
intention to provide a continuous waterfront access as the Garrison had agreed that the
CMD site would be open to the public when not in military use. Moreover, there
would be alternative East-West access behind CMD. It was noted that the location
and design of CMD at the Central harbourfront had been deliberated at length in the
past, including the planning process leading up to the approval of the OZP in 2000
and the public engagement process for the UDS in 2008. The design of CMD,
including design of the folding gates for fencing off the dock, was compatible with
and integrated with the waterfront promenade. When CMD was closed for military
use, the public could use the walkway to the immediate south of the military dock and
continuous east-west connection along the waterfront was maintained. The area to
the south of the walkway was zoned “O” and would be developed into a public open
space within which public access would be provided. Members also noted that the
cycle track was not the subject of OZP amendments and according to the final
recommendation of the UDS, a cycle track would be provided in the waterfront
promenade in the Central harbourfront.
Zoning and Related Matters
Preamble of Town Planning Ordinance
55. The Chairman said that some representers/commenters considered that
zoning of the CMD site for military use was not in line with the preamble of the Town
Planning Ordinance. The Secretary said that section 3(1) of the Ordinance also
contained similar wording as the preamble which stated that the Board should
undertake the systematic preparation of draft plans and draft development permission
area plans “with a view to the promotion of the health, safety, convenience and
general welfare of the community”.
56. Four Members said that zoning of the CMD site for military use was in
line with the preamble of the Ordinance as defence was related to safety and/or
general welfare of the community. Two of the Members pointed out that the Board
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had in the past also zoned sites for military use. A Member also said that a military
dock already existed in Central previously and CMD was only for its reprovisioning.
The rezoning of the site would not in any way be inconsistent with the preamble. A
Member said that by constructing the military dock at a place close to the Prince of
Wales Barracks (as required under Item 5 of Annex III of DLA), the possible adverse
impacts or inconvenience caused by the presence of the military facilities would be
minimised. A Member said that there were utility facilities such as gas storage in
some housing estates that might be considered by some people as land uses that would
affect the health, safety and well being of the people living in the housing estates.
However, such facilities were essential and had to be provided but with consideration
to minimise the health and safety risks.
57. Another Member said that some representers/commenters considered that
the military dock would cause inconvenience or even constitute threat to their
personal safety. The Board might need to take into account the concerns when
deciding on the zoning for the site. Some representers/commenters had proposed
that the site should be rezoned from “OU(MU)” to “O” and be closed for military use
only when needed. This proposal might be able to address some concerns of the
representers.
58. In summary, Members considered that the amendments incorporated into
the OZP were to reflect the land use of CMD and they were within the statutory
functions of the Board and were in compliance with the Ordinance.
Justifications for Zoning the Site for Military Use
59. The Chairman said some representers/commenters were of the view that
given that the undertaking in DLA had already been fulfilled, DLA would no longer
be a relevant consideration or justification for the rezoning. Some also said that
there was no specific request from the Security Bureau or PLA for the Board to zone
the site for military use. Hence, there was no justification for the Board‟s rezoning
of the site to military use.
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60. A Member said that the zoning of the CMD site to military use was to
reflect its intended use, which was in line with the Board‟s practice to rezone sites to
reflect their as-built conditions. Another Member said that it was a hard fact that
CMD had to be reprovisioned and handed over to the Garrison for its management
and use and, as such, the zoning reflecting its military use was appropriate. With
regard to the point that the OZP amendment was not initiated by the Security Bureau
or PLA, Members noted that it was explained by PlanD at the hearing that the subject
amendments to the OZP were made by the Board under section 7 of the Ordinance
and within its statutory functions. They were not arising from a section 12A
application submitted by another party.
61. A Member said that in the earlier versions of the OZP, the “military
berth” was annotated as “subject to detailed design”. Now that the design and
construction of CMD was completed, it was appropriate to amend the zoning to
reflect the boundary and the use of CMD on the OZP. This was a necessary step to
complete the statutory planning process for the site. The Chairman said that the
boundary of the military dock and the ancillary facilities built were based on the
requirements of the Garrison.
62. In summary, Members generally agreed that taking into account the
historical background relating to DLA, the funding approval from LegCo and that
CMD was now built and its boundary was finalised, the amendments to the OZP to
reflect the present circumstances were necessary. This was also in accordance with
the usual practice of the Board to reflect the delineation and use of the military sites.
“OU(MU)” Zoning
63. The Chairman said that some representers/commenters raised queries that
the term “military use” being used in the current OZP was too wide, given that more
specific terms such as “military dock” and “military berth” were used in DLA and the
previous OZP respectively. Members noted that CMD, which was required to be
located near the Central Barracks as stated in Annex III of DLA, was associated with
the Central Barracks. The Central Barracks was under the same “OU(MU)” zoning
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under the OZP. The Chairman said that given the historical background relating to
DLA, the CMD was to be reprovisioned so that it would continue to be available for
defence purpose, and Members would need to consider whether restricting its use to
say only a military dock or military berth, as suggested by some
representers/commenters, would be appropriate for CMD to serve its defence purpose.
64. In response to the Chairman, the Secretary highlighted the provisions for
the site in the Notes and Explanatory Statement (ES) of the OZP. The CMD site was
zoned “OU(MU)1” and there were also other military sites under the same
“OU(MU)” zoning on some other OZPs. The Notes applicable to the CMD site
were that “For All Other Specified Uses (Not Listed Above)” under which the
Column 1 use was indicated as „As specified on the Plan‟ i.e. military use. The
Remarks of the Notes included a building height restriction of 10mPD for the
“OU(MU)1” site and a clause for minor relaxation of the said building height
restriction. The Column 2 uses were typical to those in other “OU” zones, namely,